A.B. Med. Servs., PLLC v American Tr. Ins. Co., 2009 NY Slip Op 52067(U) (App. Term, 2nd 2009)
Contrary to plaintiffs’ contention, defendant established both that the EUO notices were mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]) and that the assignor failed to appear (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Consequently, in light of the foregoing and the fact that plaintiffs’ further [*2]contentions that the EUO notices were defective and that an EUO was not necessary lack merit, defendant’s cross motion for summary judgment was properly granted (W & Z Acupuncture, P.C. v Amex Assur. Co., 24 Misc 3d 142[A], 2009 NY Slip Op 51732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).
Even were we to find otherwise, plaintiffs’ motion for summary judgment was properly denied because plaintiffs failed to make a prima facie showing of their entitlement to summary judgment since the affidavit submitted by plaintiffs’ billing manager failed to establish that the documents annexed to plaintiffs’ moving papers were admissible pursuant to CPLR 4518 (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Fortune Med., P.C. v Allstate Ins. Co., 14 Misc 3d 136[A], 2007 NY Slip Op 50243[U] [App Term, 9th & 10th Jud Dists 2007]).
Careplus Med. Supply, Inc. v Allstate Ins. Co., 2009 NY Slip Op 52068(U) (App. Term, 2nd 2009)
Plaintiff failed to make a prima facie showing of its entitlement to summary judgment since the affidavit submitted by plaintiff’s president and medical biller failed to establish that the documents annexed to plaintiff’s moving papers were admissible pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Fortune Med., P.C. v Allstate Ins. Co., 14 Misc 3d 136[A], 2007 NY Slip Op 50243[U] [App Term, 9th & 10th Jud Dists 2007]). Consequently, plaintiff’s motion for summary judgment was properly denied. In view of the foregoing, we reach no other issue.
If anyone can find a case that supports any of these propositions, they get a cookie:
- If a summary judgment motion is made before the completion of discovery, it is premature as a matter of law. Can this be distinguished from a pre-answer motion to dismiss?
- A motion without written opposition must be granted as a matter of law, regardless of the sufficiency of the moving papers. Double cookies for anyone who can find an Appellate Term case that says as much.
- If a motion is granted without written opposition, but an attorney appears on the motion, it is not on default because someone appeared. And, as a result, the “defaulting” party cannot make a motion to vacate.
If you just read this and are confused, you should be. If you aren’t, then you know what I’m getting at.
Regarding the first issue, the distinquishing factor may be whether there is any pending discovery when the motion is made, or whether the opposing party merely asserts, after the MFSJ is made, that it should be entitled to discovery . I think under the later senario, the cases require the party defending the MFSJ to show the court why its proposed discovery is relevant to the MFSJ issues.
I think under the former senario, you have the argument that it is premature as a matter of law. I recently parsed this issue and found these cases which lend some credence to that theory: Karnes v. City of White Plains, 237 A.D.2d 574, 576 (2nd Dept 1997)(“The motion for summary judgment was properly denied as premature based upon the City’s failure to comply with the plaintiff’s notice for discovery and inspection”); Hart v Incorporated Vil. of Val. Stream, 193 AD2d 781(2nd Dept. 1993); Barletta v Lewis, 237 AD2d 238 (2nd Dept. 1997).
Regarding your second two issues, I don’t think those are valid propositions to begin with.
I agree with you as the last two issues. I don’t think either make any sense at all, but I wanted to ask the question without tainting any responses.
As to the first issue, summary judgment can be entirely appropriate despite no discovery having been provided. It depends on the facts though.